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STATE SOVEREIGNTY AS A MAJOR HURDLE TO HUMAN RIGHTS.

Abstract

According to the Social Contract Theory propounded by Rousseau, man surrendered his natural rights to the

general will in order to find security and order. Locke felt that Parliament could best protect individual rights

by limiting the monarch. Rousseau concluded that men are born free yet everywhere they are in chains.

Rousseau also argued that a citizens sovereignty comes through his search for freedom, not as a gift from the

ruler. Both Locke and Rousseau justified revolution if the contract was broken. Hence, it follows that the people

surrendered their rights to the sovereign. Since Aristotle, the term sovereignty has had a long and varied

history during which it has been given different meanings, hues and tones, depending on the context and the

objectives of those using the word. We have come far from the totalitarian definition of sovereign as given by

Austin.

However, the reality is stark and different from these theoretical discourses. When one looks at the many

violations of Human Rights taking place throughout the world, one need not look further than ones own

country. The State is the biggest perpetrator of Human Rights violation. Sovereignty and Human Rights are seen

by many as being fundamentally opposed: the rights of states pitted against the rights of individuals. The paper

will deal with questions such as whether the sovereign has an unlimited power to do all that is not expressly

forbidden by international law, when does the world have the right to tell a government how to treat its people

and what is the role of international agencies like UN, etc to intervene when Human Rights are violated by the

State.

Introduction

Two very important developments are associated with globalization challenge the way we

think about rights and sovereignty. The first is the increasingly influential discourse of

international human rights. This discourse has led theorists to argue that the legitimacy of

governments should be contingent on their being both non-aggressive and minimally just. A

radical idea is at stake: that the international community may compose moral principles and

enforce legal rules regulating the conduct of governments toward their own citizens and

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residents. It is also argued that the international community has the default obligation to

protect and enforce basic human rights. Indeed, some construe minimal democracy as a

basic human right, partly because it as a requirement of justice, partly because democracy is

deemed to be conducive to peace and respect for other human rights.1

The second development is the expanding reach of global governance; which, however, is

not relevant to the present discussion.

Further, human rights discourses are always polemical and ultimately unintelligible if one

does not understand the political stakes in this torical context. The original push to revive the

concept of international human rights in the contemporary period occurred in the wake of

atrocities committed by the great powers against civilians during WWII, generating the well-

known tribunals, declarations, treaties, covenants, as well as a revival of theories of natural

law and moral rights in the face of a largely discredited legal positivism.2

Hence, while at one time state sovereignty was viewed as a method of facilitating and

maintaining peace, it is arguably this assumption which has hampered many attempts to

totally revamp the notion of sovereignty.3 One possible explanation of the continued

reluctance of states to intervene in other countries internal affairs could be the situation

under which state sovereignty was born. As Sens and Stoett explain, state sovereignty came

1Jean L. Cohen, Rethinking Human Rights, Democracy, and Sovereignty in the Age of Globalization, Political

Theory, Vol. 36, No. 4 (Aug., 2008), p. 5782 See Mark Mazower, The Strange Triumph of Human Rights, 1933-1950, Historical Journal 47, no. 2 (2004):

379-98.3

International Commission on Intervention and State Sovereignty, The Meaning of

Sovereignty, available at http://www.iciss.ca/report2-en.asp#sovereignty .

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about largely as a result of the Peace of Westphaliawhich put an end to the Thirty Years

War in Europe.4

Thus, the paper introduces the concept of state sovereignty by very briefly discussing the

philosophical aspects of sovereignty and then analyzing its relevance in the current context.

The paper then moves on to analyse the role that international organizations play to protect

the rights of the people of a State, when the State acts as a violator of the human rights of its

citizens rather than a facilitator. Many examples and cases are given to assist the argument

which the present paper forwards.

Sovereignty: An Evolving Concept

Since Aristotle, the term sovereignty has had a long and varied history during which it has

been given different meanings, hues and tones, depending on the context and the objectives

of those using the word.5 State sovereignty may be understood as the absolute territorial

organization of political authority. This idea reflects the concept of sovereignty that emerged

from Westphalia and then developed along with Enlightenment and Romantic ideals of

popular rule and patriotism. Many governments continue to act as if the concept is actually

descriptive of the contemporary. 6

The problem which then arises is that if there are no limits to the power of the sovereign, then

how does one keep a check on the atrocities which the State commits on its people. In

4Allen Sens and Peter Stoett, Global Politics: Origins, Currents, Directions: (Toronto: Nelson, 2005) 3rd ed.,

48.5

Reisman, W. Michael, Sovereignty and Human Rights in Contemporary International Law. Faculty

Scholarship Series. Paper 872. (1990) available at http://digitalcommons.law.yale.edu/fss_papers/872

6 John Agnew, Sovereignty Regimes: Territoriality and State Authority in Contemporary World Politics, Annalsof the Association of American Geographers, Vol. 95, No. 2 (Jun., 2005), p.439.

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practice, the term sovereignty has been used in many different ways. In contemporary usage

four different meanings of sovereignty can be distinguished: interdependence sovereignty,

domestic sovereignty, Westphalian or Vattelian sovereignty, and international legal/external

sovereignty.7

Interdependence sovereignty refers to the ability of states to control movement across their

borders. Many observers have argued that sovereignty is being eroded by globalization

resulting from technological changes that have dramatically reduced the costs of

communication and transportation. States cannot regulate transborder movements of goods,

capital, people, ideas, or disease vectors. Governments can no longer engage in activities that

have traditionally been understood to be part of their regulatory portfolio: they cannot

conduct effective monetary policy because of international capital flows; they cannot control

knowledge because of the Internet; they cannot guarantee public health because individuals

can move so quickly across the globe.

The issue here is not one of authority but rather of control. The right of states to manage their

borders is not challenged, but globalization, it is asserted, has eroded their ability to actually

do so. Domestic sovereignty refers to authority structures within states and the ability of these

structures to effectively regulate behavior. The classic theorists of sovereignty, Bodin and

Hobbes, were concerned primarily with domestic sovereignty. Both endorsed a highly

centralized authority structure and rejected any right of revolt. In practice, the vision of Bodin

and Hobbes has never been implemented. Authority structures have taken many different

forms including monarchies, republics, democracies, unified systems, and federal systems.

7Stephen D. Krasner Abiding Sovereignty, International Political Science Review / Revue internationale de

science politique, Vol.22, No. 3, Transformation of International Relations: Between Change and

Continuity.Transformations des relations internationales: entre rupture et continuit (Jul., 2001), pg 231

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High levels of centralization have not been associated with the order and stability that Bodin

and Hobbes were trying to guarantee.8

Westphalian or Vattelian sovereignty refers to the exclusion of external sources of authority

both de jure and de facto. Within its own boundaries the state has a monopoly over

authoritative decision-making. At the international level this implies that states follow the

rule of non-intervention in the internal affairs of others. This notion of sovereignty is

frequently associated with the Peace of Westphalia which ended the Thirty Years War in

1648. Although the treaties of Osnabruck and Muenster, which made up the Peace, endorsed

the principle ofcuius regio, eius religio9 originally formulated in the Peace of Augsburg of

1555, in fact Westphalia was actually about establishing an internationally sanctioned regime

for religious toleration in Germany rather than legitimating the authority of princes to set

rules for religious practices within their own domains. The Peace, which was signed by most

of the major powers, established a consociation system for deciding religious questions in

Germany; such issues had to be approved by a majority of both Catholics and Protestants in

the Diet and Courts of the Holy Roman Empire. It also froze religious arrangements as they

had existed on 1 January 1624 and set rules for sharing offices in a number of German cities

that had mixed populations. The Peace of Westphalia had almost nothing to do with

conventional notions of sovereignty.10

The Contemporary International System: How Sovereignty Works

International legal sovereignty refers to mutual recognition. Sovereignty and sovereign

equality are ordering concepts of the international legal system which ascribe political

8Bodin, 1992: 13-14; Skinner, 1978: 284-287; Hinsley, 1986: 12, 181-184

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autonomy, legal standing, and certain prerogatives to those states. They are indicative of the

plural structure of the international political system, of the way in which political

communities and public power are organized and differentiated from one another. There can

be different sovereignty regimes and nothing prevents sovereign states from acknowledging

that certain prerogatives such as waging aggressive war or grave violations of human rights

are not within the domestic jurisdiction of any state.11 They can agree to these principles,

create binding international law, and ascribe to specific organs of the international

community that they constitute the function of protecting and enforcing human rights in

particular delimited cases of radical default thereby creating a dualist international system:

based on the two legal principles of sovereign equality and human rights.12

The contemporary international system has its own rules and actors. Sovereign states are the

building blocks, the basic actors, for the modern state system. Sovereign states are territorial

units with juridical independence; they are not formally subject to some external authority.

Sovereign states also have de facto autonomy. Although the power and preferences of foreign

actors will limit the feasible options for any state, sovereign states are not constrained

because external actors have penetrated or controlled their domestic authority structures.

Quisling states are not sovereign. An implication of de facto autonomy is the admonition that

states should not intervene in each other's internal affairs. Sovereign states are also generally

assumed to have some reasonable degree of control over both their borders and their territory.

A number of observers have, however, suggested that in the contemporary period the

9Translation: The prince can set the religion of his territory.

10supra note 7, Stephen D. Krasner, p. 231.

11Jean L. Cohen, Sovereign Equality.,

12supra note 1, Jean L Cohen, p. 578.

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sovereign state is being subjected to unprecedented pressures, especially from globalization

and human rights norms which bring the viability of the system itself into question.13

Sovereign equality as an international legal entitlement has acquired a new dimension,

namely the status of being a member of the international community with the right to

participate in international organizations that make coercive decisions affecting all states and

their citizens. Internationally sovereignty has always been a status claim and since 1945, UN

membership has been perceived as a validation of sovereign status. Today it is increasingly

the case that for states to realize their sovereignty they need the status of member with the

right to participate in the decision-making processes of the various international organizations

and networks that regulate the international system, on fair terms. 14

Indeed, the two aspects of sovereignty are interrelated, as is obvious in the case of the UN

Security Council, which exercises the crucial functions of deciding which violations of

human rights suspend the prima facie sovereignty argument, and on appropriate enforcement

measures. The idea that interdependence or the proliferation of global governance institutions

makes sovereignty as autonomy irrelevant is based on the false premise that sovereignty

entails autarky and that it is only a matter of factual power (control) rather than normative

and legal construction. Inclusion and status in global governance institutions does not render

sovereignty as autonomy irrelevant or anachronistic any more than democratic institutions

render rights protecting personal autonomy irrelevant in a republic.15

13supra note 7, Stephen D. Krasner p. 229.

14Chayes and Chayes, The New Sovereignty, p. 27. Ann-Marie Slaughter, Security, Solidarity and Sovereignty,

619.15

supra note 1, Jean L Cohen, p.606.

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Many recent observers have argued that the sovereign-state system is now under

unprecedented stress because of two developments: globalization and changing international

norms with respect to human rights. However, only the aspect of human rights is relevant for

the present discussion. Human rights norms challenge Westphalian/Vattelian sovereignty

because they imply that domestic authorities are not free to set their own rules about the

treatment of individuals within their borders.16

Role of the United Nations

International law still protects sovereignty; but it is the people's sovereignty rather than the

sovereign's sovereignty that is protected. Under the old concept, even scrutiny of

international human rights without the permission of the sovereign could arguably

constitute a violation of sovereignty by its invasion of the sovereign's domaine reserve.

The United Nations Charter replicates the domestic jurisdiction-international concern

dichotomy, but no serious scholar still supports the contention that internal human rights are

essentially within the domestic jurisdiction of any state and hence insulated from

international law.17

The focus here is on the law of the United Nations Charter as an emerging world

constitution. It recognizes and emphasizes the sovereign equality of member states,18

and thus clings to the idea that the international legal and political order depends on the

states' stability and their capacity to act effectively. Yet in Chapter VII of the Charter it also

provides for the organizations competence to interfere drastically with the sovereign member

states policies if these endanger international peace and security.

16supra note 7, Stephen D. Krasner, p 231.

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Sovereignty as a recognized, basic principle of the United Nations Charter is viewed

as compatible with the restraints provided by Chapter VII and with the unequal power

structure as it exists today (for example, nuclear haves and have nots). Likewise the

Charter provides for the obligation of the member states to promote respect for human

rights without discrimination on the basis of race, sex, or nationality.19 This obligation,

elaborated and improved by the numerous human rights instruments, has been

continuously interpreted as not to constitute an illegal and illegitimate inroad on

national sovereignty.20

Human Rights and its Various Interpretations

There are almost as many theories of rights as there are rights theorists. It is sometimes said

that the only true rights are legal rights.21 Other scholars argue for a broader view of rights

which would encompass moral rights as well. However, for the purpose of this paper, a

detailed study of the word rights is not advisable. Hence, a simple meaning of rights will

suffice for the present purpose.

The classic definition of a human right is a right which is universal and held by all persons: A

human right by definition is a universal moral right, something which all men, everywhere, at

17supra note 5, Reisman, W. Michael.

18U.N. CHARTER art. 2, para. 1

19U.N. CHARTER art. 1, para. 3; id at art. 13, para. 1; id. at art. 55, para. 1.

20As to the United Nations practice with regard to U.N. CHARTER art. 2, para. 7 in the context of human

rights, see 1 Repertory of United Nations Practice 55-58, U.N. Sales No. 1955. V.2 (1955)21

Bentham in Bowring [ed.] 1843/11:501; 111:221; Hart 1973: 171-201

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all times ought to have, something of which no one may be deprived without a grave affront

to justice, something which is owing to every human being simply because he is human.22

The Oxford English Dictionary defines a right as a justifiable claim, on legal or moral

grounds, to have or obtain something, or to act in a certain way. Analyzing the definition, it

follows that to have a right is to have a claim to something and against someone, the

recognition of which is called for by legal rules or, in the case of moral rights, by the

principles of an enlightened conscience.23 Hence, the word against in the definitions also

includes the concept of enforcement of human rights of the people against its State.

However, for the purposes of this paper, a broad definition of human rights will be assumed,

that of the Universal Declaration of Human Rights which states that all human beings are

born free and equal without regard to race, sex, language, religion, political affiliation, or the

status of the territory on which they were born.24

Therefore, any true human right, it is said, must satisfy at least four requirements: First, it

must be possessed by all human beings, as well as only by human beings. Second, because it

is the same right that all human beings possess, it must be possessed equally by all human

beings. Third, because human rights are possessed by all human beings, we can rule out as

possible candidates any of those rights which one might have in virtue of occupying any

particular status or relationship, such as that of parent, president, or promise. And fourth, if

22Cranston 1973: 36 as cited in Alison Renteln, The Concept of Human Rights, Anthropos, Bd. 83, H. 4./6.

(1988) pg 34723

Joel Feinberg 1980: 159-16024

Joshua S. Goldstein and Jon C. Pevehouse, International Relations: 2006-2007 Edition, (New York: Pearson,

2007) 7th

ed., 288.

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there are any human rights, they have the additional characteristic of being assertable, in a

manner of speaking, against the whole world25

As one can see from the definitions, human rights are presumed to be universal in character.

This would not in itself be problematic, except that the philosophical foundations are never

adequately demonstrated. The failure to ground human rights, as the paper will very briefly

discuss below, has much to do with their historical antecedents, in particular natural law and

natural rights, with which human rights are assumed by many philosophers to be

synonymous.26

Increasingly, justification for human rights is coming to depend less on human nature and

rationality and more on the concepts of basic human needs and human dignity. These

strategies, however, are subject to the same weaknesses as their predecessors.27 How theorists

derive specific human rights from needs or dignity remains entirely obscure. Hence, delving

into the philosophical aspects of Human rights is not the aim of the present paper. One of the

thorniest issues faced by the United Nations in recent years has been how to balance state

sovereignty with human rights. At the core: when does the world have the right to tell a

government how to treat its people?28 Indeed, in virtually all such cases, the moral and policy

choices are difficult.

Part of the conundrum is that international law is mixed. While some parts of the UN Charter

clearly uphold the concept of state sovereignty, other passages allow the Security Council to

use military force such as may be necessary to maintain or restore international peace and

25supra note 22, Alison Renteln, p. 347.

26Donnelly 1985: 10; Pappu 1969: 44; Wasserstrom 1979.

27supra note 22, Alison Renteln, p. 34828

Brian Lepard, Balancing human rights and state sovereignty in a multicultural world, available at

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security. Likewise, the Universal Declaration of Human Rights proclaims that it is "essential

to promote the development of friendly relations between nations," a statement often

interpreted as upholding state sovereignty. But it also proclaims that everyone is entitled to a

social and international order in which the rights and freedoms set forth in this Declaration

can be fully realized, granting in the minds of some a moral entitlement to human rights - not

in the least of which is to life, liberty and security of person.29

The fundamental freedoms recognized by national and international law has grown,

over the last half century into what has come to be known as the International Human

Rights Law.

Response of the International Community

As discussed in the Chapter of Sovereignty of the present paper, the notion of sovereignty

was different under the old international law and the new international law. Under the old

international law, the internal usurper was so entitled, for the standard was de facto control:

the only test was the effective power of the claimant.

In the Tinoco case,30 Costa Rica sought to defend itself by claiming a violation of its popular

sovereignty. Tinoco, the erstwhile Minister of War, had seized power in violation of the

Constitution. Therefore, the subsequent restorationist Costa Rican Government contended,

his actions could not be deemed to have bound Costa Rica. But Chief Justice Taft decided

that by virtue of his effective control, Tinoco had represented the legitimate government as

long as he enjoyed that control. The Tinoco decision was consistent with the law of its time.

http://www.onecountry.org/e141/e14116as_Humanitarian_review.htm.

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Were it applied strictly now, it would be anachronistic, for it stands in stark contradiction to

the new constitutive, human rights-based conception of popular sovereignty. To be sure, there

were policy reasons for Tinoco, which may still have some cogency, but the important point

is that there was then no countervailing constitutive policy of international human rights and

its conception of popular sovereignty.31

However, can it truly be maintained that non-intervention is the best policy when it allows

encroachments on fundamental human rights and freedoms to continue? A recent example of

this puzzle is the war conducted by Russia against its Chechen population. During the course

of the conflict, Russia was reported to have violated several human rights through its use of

extrajudicial executions, torture, and rape against the Chechen insurgents, as well as the

Chechen population at large.32 These acts are, at least by the UN standards, clearly violations

of human rights on the basis of sex, religion, and the status of the territory on which one

was born.33 Despite these flagrant transgressions on the part of Russia, the EU, whom many

expected to intervene, was relatively silent on the matter.34 This, some speculated was the

result of the European Unions interest in fostering a strategic partnership with Russia.35 As

Andrew Osborne argues, the EU knows that to voice its own opinion on Chechnya is not

without risk.36

Accordingly, there is a disconnect between the theoretical foundation of sovereignty

(preventing conflict) and the preservation of human rights. Indeed, by respecting Russias

29Id.

30Tinoco case (Great Brit. v .Costa Rica), 1 R. Int'l Arb. Awards 369 (1923), reprinted in 18AJIL 147 (1924)

31supra note 5, Reisman, W. Michael.

32Amnesty International, Chechnya human rights under

attack, available at http://www.amnesty.org/russia/chechnya.html33

supra note 24, Goldstein and Pevehouse, p. 288.34

Andrew Osborne, The EUs Chechnya Challenge, Guardian [UK], Nov. 7,2003, http://www.guardian.co.uk/world/2003/nov/07/worlddispatch.russia(January 22, 2009).35

Guardian, Nov. 7, 2003.

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internal sovereignty, the EU has managed to evade the serious economic and diplomatic

repercussions that could accompany taking a stronger stand.37

Thus, as seen from the aforementioned example, intervention by the international community

which is looked upon as a violation of the Westphalian/Vattelian sovereignty by the States is

justified. In some cases violation Westphalian/Vattelian sovereignty can be violated in a

number of different ways. In some instances external actors such as NGOS, international

organizations, or other more powerful states have encouraged regimes to accept standards

that they would have preferred to ignore. Human rights NGOs, such as Amnesty International

for instance, have publicized what they have regarded as the illicit practices of some regimes,

and this in turn has increased pressure from other governments.

There have also been more direct cases of state-to-state interventions regarding human rights

issues of which military interventions, Clinton's dispatch of American troops to Haiti for

instance, have been the most dramatic. Westphalian/Vattelian sovereignty can also be

compromised through the voluntary actions of political leaders. The European Human Rights

regime, which includes supranational institutions like the European Human Rights

Commission and the European Human Rights Court, is one example. After the Second World

War European leaders, especially those in states where democratic principles were not firmly

institutionalized, such as Germany, wanted to create an international regime that would make

it more difficult for any national leader, including their own successors, to violate human

rights. This regime was not the result of external coercion or pressure from either public or

private actors, but rather of a voluntary agreement, a treaty. By exercising their international

36Id.

37supra note 24, Goldstein and Pevehouse, p. 289.

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legal sovereignty, their right to make contracts, European decision makers violated the

Westphalian/Vattelian sovereignty of their own polities.38

International law is still concerned with the protection of sovereignty, but, in its modern

sense, the object of protection is not the power base of the tyrant who rules directly by

naked power or through the apparatus of a totalitarian political order, but the continuing

capacity of a population freely to express and effect choices about the identities and

policies of its governors. In modern international law, the unilateral declaration of

independence by the Smith Government in Rhodesia was not an exercise of national

sovereignty but a violation of the sovereignty of the people of Zimbabwe.39

The Chinese Government's massacre in Tiananmen Square to maintain an oligarchy

against the wishes of the people was a violation of Chinese sovereignty. The Ceausescu

dictatorship was a violation of Romanian sovereignty. President Marcos violated Philippine

sovereignty, General Noriega violated Panamanian sovereignty, and the Soviet blockade of

Lithuania violated its sovereignty. Fidel Castro violates Cuban sovereignty by mock elections

that insult the people whose fundamental human rights are being denied, no less than the

intelligence of the rest of the human race. In each case, the violators often brazenly

characterize the international community's condemnation as itself a violation of their

sovereignty.40

38supra note 7, Stephen D. Krasner p. 234.

39See generally The Situation in Southern Rhodesia: Resolutions Adopted by the General Assembly and the

Security Council of the United Nations, reprinted in 60 AJIL 921 (1966). For

commentary, see McDougal & Reisman, Rhodesia and the United Nations: The Lawfulness of Internatlmal

Concern, 62 AJIL 1 (1968).40

Eric Neumayer, Do International Human Rights Treaties Improve Respect for Human Rights? The Journal of

Conflict Resolution, Vol. 49, No. 6 (Dec., 2005), p. 925

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Under the new international law regime, The international human rights program is more

than a piecemeal addition to the traditional corpus of international law, more than

another chapter sandwiched into traditional textbooks of international law. By shifting the

fulcrum of the system from the protection of sovereigns to the protection of people, it works

qualitative changes in virtually every component.41

Further, International human rights puts current and erstwhile tyrants on notice that

monarchical and elitist conceptions of national sovereignty cannot be invoked to

immunize them from the writ of international law. Some have already grasped the

implications of this development. Haiti, in July 1990, asked the United Nations to provide

three hundred civilian officials to supervise its upcoming elections and forty military officers

to ensure that the local armed forces would be part of the solution rather than part of the

problem.42

Haiti's provisional Foreign Minister, Kesler Clermont, said such a team would set a powerful

precedent for UN monitoring of Third World elections to certify their legitimacy. Three of

the seven Third World members of the Security Council opposed the request. 43 The princes

may not like this, but for peoples languishing under despotism and dictatorship, the

development promises, at least, the condemnation by international law of the violation of

their sovereignty and the possibility, uncertain as it may be, of a remedy. The role of judges,

national and international, is critical to an understanding, and to the advancement, of modern

international human rights jurisprudence. It lies not so much in what judges say, but in what

judges do in the cases that come before them.44

41Towne v. Eisner, 245 U.S. 372, 376 (1918).

42Lewis, Haiti Wants U.N. to Monitor Vote, N.Y. Times, July 22, 1990, at 10, col. 6.

43Id.44

Oliver Wendell Holmes, Jr.,The Path of the Law (1897).

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It was a widely recognized rule of international law and practice that individuals had no

standing to challenge a violation of international treaties in the absence of a protest by the

sovereign State involved. This rule had survived the legal documentation of the post-1945

period, and was firmly established by decisions of national courts, first in Israel in the

Eichmann case, in 1962,45 and then in the U.S. in the Noriega case, in 1990.46 These cases

held that rights under international common law belong only to the Sovereigns, not to

individuals, and this statement of the law was approved in all leading textbooks right down to

1994.

But now things have changed. In a judgment delivered, in October 1995, in the case of

Prosecutor v. Tadi,47the International Criminal Tribunal at the Hague, trying cases of crime

against humanity in the former Yugoslavia, has held that even the State's sovereign power to

establish its own courts for punishment of crimes committed within its own territory must

give way in the face of offences that do not affect the interest of one State alone but shock

the conscience of mankind.

Where a conflict had both internal and international aspects, then, regardless of the type of

conflict, an International Tribunal set up by the Security Council had jurisdiction and

authority to adjudicate offenses committed by a citizen of a State, even though the offenses

were general criminal offenses, like murder and rape, committed within the territory of the

State. As to the judgment in theEichmann case and in theNoriega case - that individuals in a

State had no right to challenge violations of international treaties to which the State was a

party-the President of the Court brushed aside these decisions in a single sentence. He

45Attorney General v. Eichmann, 36 I.L.R. 5 (Isr. Dist. Ct. -Jerusalem 1961). 36 I.L.R. 277 (Isr. Sup. Ct. 1962).

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explained that pronouncements of this kind do not carry in the field of international law the

weight they may bring to bear in national judiciaries.

Whenever a sovereign State chooses to be a law unto itself, there is simply no effective

power to stop it, particularly if it has, and is known to have, a sufficient arsenal of weapons.

Although the threat of a universal war has been contained, sporadic regional warfare is far too

frequent, reaching new depths of savagery. The civilian population is attacked and decimated

by powerful groups within a State. Thus, the sovereignty of the State, as opposed to the

concept of the comity of nations, continues to be the single gravest threat to the human right

to world peace, and there is no sustained and dedicated effort to make the peoples of the

world aware of this important fact.48

Hence, the great violators of the most basic human right, the right to peace, are sovereign

governments obsessed with national security. Although we do have an impressive body of

international law, with scores of international covenants and conventions, in the end they do

not add up to much.

Conclusion

Hence, the whole discussion has led us to one conundrum. If International organizations and

other countries step in to prevent human rights violations by the State on their citizens, is it

the end of State Sovereignty?

46US. v. Noriega, 746 F.Supp. 1506 (S.D. Fla. 1990).

47Tadi, 35 I.L.M. at 51 (discounting Tadi's argument that ICTY is unlawfully usurping national court's power).

48 Fali Nariman, International Human Rights and Sovereignty of States: Role and Responsibility of Lawyers,Fordham International Law Journal, Volume 21, Issue 2 1997 Article 26

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The answer is that International organizations (Ios) are a manifestation of international legal

sovereignty. They reflect efforts by political leaders to secure policy outcomes that would

elude them if they acted unilaterally. Organizations can resolve market failure problems by

providing information, linking issues, establishing focal points, and facilitating commitments.

Multilateral organizations may legitimate norms that would be suspect if they emanated from

a single state. States, especially individual states, might not be able to fully control Ios, but

10s are a product of international legal sovereignty even if they sometimes undermine

Westphalian/ Vattelian and domestic sovereignty. Ios are complementary to, rather than

substitutes for, sovereign states. They are not a stepping-stone to something else.49

However, given the imbrications of sovereignty with participation in these institutions, the

international community faces a new task; i.e. in order to redress injustices that the legal

attribution of sovereignty to states and poorly designed international governance institutions

generate, institutional and legal reform is required. One has to proceed in a different way to

establish international human rights law that regulates the external as well as the internal

conduct of states and creates a unique form of legal subjectivity for individuals. 50

This could only be accomplished, in one of two ways. Either states in international society

come together and covenant anew, making explicit and determinate the proper subset of

human rights that would be considered hard international law and whose violation thus would

serve as the defeasible justification for suspending the sovereignty argument and imposing

sanctions. Or this is done within the framework of the most important global organization

with universal membership-the United Nations, perhaps in a special session of the General

Assembly, perhaps with representatives of "civil society" being permitted to speak and

49supra note 7, Stephen D. Krasner, , p. 247.

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influence the discussion, perhaps with a special voting procedure also involving the Security

Council without any veto.51

Thus, the paper concludes by quoting Michael Reisman who aptly summarizes the aim of this

paper when he says that those who yearn for the good old days and continue to trumpet

terms like sovereignty without relating them to the human rights conditions within the

states under discussion do more than commit an anachronism. They undermine human

rights.

50supra note 1, Jean L Cohen, pp. 578-80.

51supra note 11, Jean Cohen, pp.183-89.